Deamer, R (on the application of) v Revenue & Customs

Article 6(1) requires confiscation-order enforcement proceedings, including proceedings seeking imprisonment in default, to be brought and determined within a reasonable time. Whether the requirement has been breached depends on all the circumstances. Relevant considerations include steps taken to recover assets by other means, the defendant’s conduct, and whether enforcement authorities communicated and acted with reasonable expedition. The threshold for establishing a breach is high. Delay is not automatically unreasonable merely because enforcement could have begun earlier. Where correspondence shows continuing investigations, repeated requests for information, and clear warnings that enforcement will follow if payment or evidence is not forthcoming, a magistrates’ court may reasonably refuse a stay and issue a warrant for commitment.

The claimant sought judicial review of a District Judge’s refusal to stay enforcement proceedings relating to a confiscation order made in 1999 under the Drug Trafficking Act 1994. The order required payment of £5,448,200 and imposed six years’ imprisonment in default. Enforcement proceedings were commenced in 2006 after a receiver had realised limited assets and the claimant’s solicitors had continued investigating possible assets in the United States.

The claimant alleged abuse of process and breach of Article 6(1), principally because of the delay before enforcement. The central issue was whether the delay was unreasonable and unjustifiable in the circumstances.

1. The application for judicial review failed. The refusal to grant a stay and the issue of a warrant for commitment were upheld.

2. Article 6(1) applies to all stages of confiscation proceedings, including enforcement proceedings seeking a warrant to commit for non-payment. The proceedings must be brought within a reasonable time. The question depends on all the circumstances, and the threshold for proving a breach is high. The court applied the principles identified in R (on the application of Lloyd) v Bow Street Magistrates’ Court [2004] 1 Criminal Appeal Reports 11, including the relevance of attempts to recover money by other methods and whether the defendant had been evasive.

3. The period during which a receiver was appointed and attempted to realise assets was reasonably disregarded. Thereafter, the enforcing authority had continued to seek information about possible assets and had warned in 2003 and 2005 that enforcement proceedings would be commenced if satisfactory payment or progress did not occur. The claimant’s solicitors had indicated that investigations in the United States were continuing.

4. Although the authority might have been naïve in waiting for the investigations to produce results, its conduct was not irrational, perverse, unreasonable, or unjustifiable. The District Judge was entitled to find that the delay did not breach Article 6(1). The correspondence did not create a reasonable expectation that enforcement would not be pursued before the claimant’s parole date.

The claim was dismissed.

The claimant sought judicial review of the Southampton Magistrates’ Court decision refusing a stay of confiscation-order enforcement proceedings and issuing a warrant to commit him in default.

High Court (Administrative Court): the application for judicial review was dismissed. The District Judge’s decision was held to be tenable and consistent with the principles in R (on the application of Lloyd) v Bow Street Magistrates’ Court [2004] 1 Criminal Appeal Reports 11.